Texas & N. O. R. v. Jeff Chaison Town-Site Co. , 290 S.W. 892 ( 1927 )

WALKER, J.

This suit was brought by appellee against appellant to recover .damages for the loss of rent and for the 'destruction of property occasioned by the negligence of appellant. Negligence was conceded. Ap-pellee owns a row of rent houses facing appellant’s right of way and the open end of one of appellant’s switches in the town of Beaumont. Three times appellant ran its cars off this switch and against one or two of appellee’s tenant houses, causing damage each time. For the first and second collisions the parties made satisfactory adjustment. The third time one of appellee’s houses was completely destroyed and another was seriously damaged. Appellee repaired the damaged house at a cost of possibly $100, but rebuilt the other. This suit was for the cost incurred in rebuilding. the house, for the damages to the house, and for the loss of rent on all the string of houses occasioned by the risk that tenants incurred in living in the houses.

By its pleadings and proof, appellee fixed its measure of damages at the cost incurred in rebuilding the house. It attached to its petition an itemized statement of the cost of the labor and material, all of which was fully sustained by the proof. Judgment for appellee was entered in the sum of $1,572.69, being (a) $823.69, “the cost of rebuilding said house” ; (b) $720, “the cost of rent”; (c) $12, the cost to appellee of storing the goods of his tenant while the house was being rebuilt; (d) $17, “the rental value and the value of the use of said house from the time it was demolished as alleged and the time it was rebuilt.”

The court erred in rendering judgment in favor of appellee for the cost incurred by it in rebuilding the house that appellant’s .negligence had destroyed. At the time of its destruction, this house' was a part of the realty, and appellee’s proper measure of damages was the value of the realty (which, of course, included the house) just before the house was destroyed and immediately after its destruction, with interest. Whatever may be the rule in other jurisdictions (and appellee has cited many authorities from other jurisdictions), our Supreme Court, in Express Company v. Real Estate Association, 81 Tex. 81, 16 S. W. 792, has clearly announced the rule as we have stated it, and this case was subsequently followed by Judge Gill in Railway Company v. Hitchins, 26 Tex. Civ. App. 400, 63 S. W. 1070. The reasons for the rule are so clearly stated by the Supreme Court, in the case just cited that it is not necessary to enter further into a discussion of the point involved. We find no facts in this record distinguishing it in the least from Express Company v. Real Estate Association, supra; in fact, the facts of this case are stronger in favor of the rule than the facts in that case. Appellee’s house was old at the time it was destroyed, had been seriously damaged twice before, was an old secondhand house when it was moved upon appellee’s property; appellee had been compensated for the previous injuries. In lieu of this old damaged house, appellee now has a new house, built, under the evidence, by' competent contractors and of good material. To award appellee the full value of this new house would more than compensate it for the injuries received.

As already said, appellee was awarded $720 for the loss of rent occasioned by the hazard to its property created by appellant’s negligence. On this issue the pleading was:

“That the plaintiff was required to &.nd did reduce the rent on the row of houses * ⅝ * $2 per house per month * * * less than what would have been the reasonable market value of the rent and use of said houses but for said menace and danger created and maintained by the defendant as herein alleged.”

The proof was:

“At the time this spur track was constructi-d I was renting all my houses in Cement street for $12. I increased the rent on the street opposite to $14 when the rent went up. That was about the year 1917 or 1918. I did not increase the rent on the Cement street property at that time. I didn’t attempt to do so because I couldn’t when the railroad was in the way, and I raised on others, but not on them. That was about 1918; yes. I knew the reason I couldn’t increase my rent on Cement, street was on account of the railroad track.”

We overrule appellant’s assignment of a variance between the allegations and the proof. As we construe its plea, appellee wás asking for the loss suffered by it in the reasonable rental “market value” of its property, to which it was clearly entitled. The allegation that it did reduce the rent was sur-plusage and subject to special exception, in the absence of special knowledge on the part of appellant of appellee’s contracts with its tenants.

The cause of action for the loss of rent was not barred by the.statutes of limitation. This cause of action was not based upon a depreciation in the value of the premises, but was only for the loss of rents occasioned by the nuisance complained of. Limitation did not begin to run until the loss accrued, which, for the damages sued for, was within two years from the filing of this suit. Railway Company v. Anderson, 79 Tex. 427, 15 S. W. 484, 23 Am. St. Rep. 350; Railway Company v. Kyle (Tex. Civ. App.) 101 S. W. 272; City of Houston v. Merkel (Tex. Civ. App.) 153 S. W. 385; Grossman v. Railway Company, 90 Tex. 641, 92 S. W. 836.

Appellee’s damages for the expense in-eurred by it in storing its tenant’s goods in the sum of $12, and for the loss of rent while the new house was being erected, in the sum of $17, were not recoverable. Appellee will be fully compensated when its damages are measured by the rule announced in Express Company v. Real Estate Association, supra.

It follows that the trial court’s judgment for the loss of rent in the sum of $720 must be affirmed, and for the damages to the house in the sum of $823.69, and the other two items of $12 and $17, must be reversed, and the cause remanded for a new trial, under the instructions herein given, and it is accordingly so ordered.

Affirmed in part,'- and in part reversed and ■remanded.